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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2001-134

Exeter Hospital Medical Staff&a.

v.

Board of Trustees of Exeter
Health Resources, Inc.&a.

Submitted: July 26, 2002

Opinion Issued: November 14, 2002

Sulloway & Hollis, P.L.L.C., of Concord (Michel A. LaFond and Robert
M. Larsen on the brief), for the petitioners.

Flygare, Schwarz & Closson, P.L.L.C., of Exeter (Daniel P. Schwarz on
the brief), and McDermott, Will & Emery, of Boston, Massachusetts (Steven W.
Kasten and Jennifer S. Geetter on the brief), for the respondents.

Rath, Young and Pignatelli, P.A., of Concord (Lucy C. Hodder on the
brief), for the American Medical Association and the New Hampshire Medical Society, as amicicuriae.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Eugene M. Van Loan III
on the brief), for the American Hospital Association and the New Hampshire Hospital
Association, as amicicuriae.

Kamensky & Rubinstein, of Lincolnwood, Illinois (Miles J. Zaremski),
and Maxwell J. Mehlman of Cleveland, Ohio, for the American College of Legal
Medicine, as amicus curiae, adopted the brief of the American Medical Association
and the New Hampshire Medical Society.

Duggan, J. The petitioners, Dr. Mark
Windt and the Exeter Hospital medical staff (medical staff), appeal the orders of the
Superior Court (Coffey, J.) granting the respondents motions to dismiss. We
affirm in part, vacate in part and remand.

The dispute in this case arose when the respondents, the boards of trustees of Exeter
Hospital, Inc. and Exeter Health Resources, Inc. (boards), removed Dr. Windt from the
boards. Upon being elected to a two-year term as medical staff president beginning January
1, 2000, Dr. Windt became an ex officio member of the boards. Board members are
subject to removal with or without cause and must sign an acknowledgement of the
boards confidentiality policy, which provides that "members of the Board of
Trustees shall maintain the confidentiality of matters considered at meetings of the Board
of Trustees, including any materials distributed at or prior to such meetings that pertain
to deliberations of the Board."

In May 2000, the executive committees of the boards advised Dr. Windt that a meeting
was scheduled to consider whether to remove him as a trustee and presented him with a
notice of proposed removal outlining the allegations against him. On June 2, 2000, Dr.
Windt received a notice of removal, which informed him that he had been removed from the
boards and which contained the following "gag order":

All information concerning EHR [Exeter Health Resources, Inc.], the Hospital, or any of
their affiliated organizations which you have received in your capacity as a Trustee,
President of the Medical Staff, or otherwise, including but not limited to all information
concerning or relating to the fact and processes of [your] removals and the reasons
therefore, is and shall remain strictly confidential and may not be disclosed to any
person without the respective Boards prior written consent. You should be strongly
advised the EHR and the Hospital will use all available legal methods to protect their
interests with regard to any actual or threatened breach of this confidentiality
obligation or other misuse of any such material or information.

The boards informed members of the medical staff that no information regarding Dr.
Windts removal would be given to them unless they also signed confidentiality
agreements.

In August 2000, Dr. Windt, the medical staff and its executive committee filed a
petition in equity, challenging the "gag order." Specifically, they requested
the following relief:

a) declare the right of the Petitioner, Dr. Windt, to disclose the Notice of Removal
and to discuss the circumstances associated therewith with the Medical Staff, without
threat of recourse;

b) declare the right of Petitioner, Dr. Windt, to access to information, documents and
Hospital personnel reasonably required to permit Dr. Windt to prepare a comprehensive
response to the allegations included in the Notice of Proposed Removal;

c) declare the right of the Petitioner, the Executive Committee, to disclose and cause
a discussion on the Notice of Removal and the circumstances associated therewith with the
Medical Staff, without threat of recourse;

d) declare the right of the Petitioner, the Medical Staff, to discuss the termination
of Dr. Windt, his response thereto, and to take appropriate action to protect
self-governance of the Medical Staff and the delivery of quality care to patients at
Exeter Hospital;

e) prohibit the Boards from instituting legal action against any person or entity for
retaining counsel or for disclosing information sought to be prohibited by the
Boards Notice of Decision;

f) schedule an expedited briefing and hearing schedule on this matter;

g) grant the Petitioners their costs and attorneys fees associated with this
Petition;

h) retain jurisdiction over this matter; and

i) grant such other relief as may be just.

The boards moved to dismiss, claiming that Dr. Windt and the medical staff lack
standing and legal capacity to sue. The court denied the motion as to Dr. Windt but
granted the motion as to the medical staff and its executive committee, ruling that
"the medical staff is not an unincorporated association with the capacity to sue or
be sued."

Proceeding with the petition, Dr. Windt commenced discovery, to which the boards
objected, alleging that discovery was an element of the ultimate relief requested. Dr.
Windt then moved to compel responses to his discovery requests, and, simultaneously, for
an expedited hearing, noting that the medical staff had called a special meeting for
November 29, 2000, to consider a proposal to recall him from his position as president.

After a hearing on November 21, 2000, the superior court ordered the boards to produce
the requested discovery and modified the "gag order" to allow Dr. Windt to
discuss the reasons for his removal from the boards with the medical staff who either
signed the confidentiality agreement or attended the November 29 medical staff meeting.

In December 2000, the boards filed a motion to dismiss, asserting that Dr. Windts
claims had become moot by the November 2000 court order. Before the court ruled on the
motion, Dr. Windt filed a second petition in equity against the boards, challenging his
removal from the boards. With respect to the original petition, the court granted the
boards motion to dismiss for mootness and denied Dr. Windts subsequent motion
for reconsideration.The second petition was ultimately voluntarily dismissed
with prejudice based upon a stipulation between the parties and is not subject to this
appeal.

On appeal, Dr. Windt and the medical staff argue that the superior court erred in: (1)
refusing to accord standing to the medical staff; (2) dismissing Dr. Windts petition
in equity as moot; and (3) allowing the "gag order" to remain unmodified when
the boards filed an affidavit identifying the allegations against Dr. Windt and other
information covered by the "gag order."

We turn first to whether the medical staff can bring suit against the boards. The
plaintiff bears the burden of sufficiently demonstrating a right to claim relief. SeeOssipee Auto Parts v. Ossipee Planning Board, 134 N.H. 401, 403-04 (1991). Because
"[a]ctions may be brought only by legal entities," 59 Am. Jur. 2d Parties
§ 24 (2002), we must decide whether the medical staff is a legal entity. The petitioners
argue that it is an unincorporated association or, in the alternative, a voluntary
association. The petitioners, however, do not distinguish an "unincorporated
association" from a "voluntary association." Thus, we treat the two alike.

We assume, without deciding, that New Hampshire recognizes an unincorporated
association as a legal entity with the capacity to sue. Butsee 6 Am. Jur.
2d Associations and Clubs § 51 (1999) (as a general rule, an unincorporated
association cannot sue or be sued in the organizations own name without an enabling
or permissive statute or rule of practice). An unincorporated association is
"[g]enerally created and formed by the voluntary action of a number of individuals in
associating themselves together under a common name for the accomplishment of some lawful
purpose." Peoples Gas System v. Acme Gas Corp., 689 So. 2d 292, 298 n.8 (Fla.
Dist. Ct. App. 1997) (quotations omitted). "It is the nature of an organization,
rather than its name, which makes it an [unincorporated] association in the eyes of the
law." 6 Am. Jur. 2d Associations and Clubs § 1. Among other things,
unincorporated associations typically adopt, interpret and administer their own rules,
regulations and bylaws, thereby promulgating internal policy and disciplinary procedures
for their members. Id. § 5.

We conclude that the medical staff in this case is not a legal entity separate and
apart from the hospital, but rather is a subordinate administrative unit dependent upon
and accountable to the hospital. Hospital licensure regulations, promulgated by the New
Hampshire Department of Health and Human Services, the Exeter Hospital (hospital) bylaws
and the medical staff bylaws reflect that the medical staff serves under the authority of
the hospital board of trustees. SeeN.H. Admin. Rules, He-P 802.02
(effective June 22, 1994; expired June 22, 2000). We note that although the department of
health and human services regulations have expired, neither party disputes their
applicability, and both cite to them to explain the hospital organization and
administration. Because the regulations are not necessary for the outcome of this case, we
rely on them only to assist in understanding the relationship between the hospital and the
medical staff.

New Hampshire Administrative Rule He-P 802.02(a) provided that, as a condition of
licensure, each hospital must have a governing body responsible for, among other things:
"[m]anagement and control of the operation of the hospital; . . . [a]doption of
hospital by-laws defining responsibilities for the operation of the general hospital, and
establishment of a medical staff . . . ; [and] . . . determination of the qualifications
for appointment for all managers, medical staff and staff." The regulations
additionally directed the medical staff to "[d]evelop . . . medical staff bylaws and
policies in conjunction with the governing body which shall establish a mechanism for self
governance by the medical staff and accountability to the governing body." N.H.
Admin. Rules, He-P 802.02(d)(2). The regulations granted the governing body final
approval of the medical staff bylaws. N.H. Admin. Rules, He-P 802.02(a)(5).

Consistent with these regulations, the bylaws of both the hospital and the medical
staff vest responsibility and authority for the hospital operation with the hospital board
of trustees. As the governing body, the board of trustees appoints the medical staff,
delegates responsibility to it, and "oversee[s] its organization into a responsible
administrative unit." The board retains ultimate authority to approve or deny
requests for clinical privileges and recommendations to revoke, suspend or condition
clinical privileges already granted. Although the medical staff develops and adopts
bylaws, rules and regulations, it is required to submit them to the governing body for
approval, and the governing body reserves the right to unilaterally adopt or amend them as
necessary.

We glean from the applicable regulations and bylaws that, although the medical staff is
an important component of the hospital, it "emerges not as a separate entity but as
part of the legally constituted hospital corporation, having been created by the governing
board." Johnson v. Misericordia Community Hospital, 294 N.W.2d 501, 507 (Wis.
Ct. App. 1980), affd, 301 N.W.2d 156 (Wis. 1981). Despite the mechanisms for
limited self-governance built into the regulations and bylaws, the medical staff lacks
independence and autonomy and is ultimately accountable to the hospital board of trustees.
We therefore conclude that

[t]he medical staff has no legal life of its own and is merely one component of the
hospital corporation. This in no way denigrates the role which the staff plays in the
modern hospital. It is, in fact, the single most important department in the hospital. But
the fact that it is a "department" means that the staff cannot sue or be sued as
a body.

The petitioners further argue that the medical staff should be accorded standing
because recognition and protection of its existence, functions and self-governance are
required by New Hampshire public policy and because the boards actions have directly
and adversely affected the medical staff, which has a direct and substantial interest in
the outcome of the litigation. Whether the medical staff can maintain an action against
the boards turns upon its status under the law. Having concluded that the medical staff is
not a legal entity, we need not address these policy arguments.

We next turn to whether the trial court erred in dismissing Dr. Windts petition
as moot. The question of mootness is one of convenience and discretion and is not subject
to hard-and-fast rules. Petition of Thayer, 145 N.H. 177, 182 (2000). We generally
will refuse to review a question that no longer presents a justiciable controversy because
issues involved have become academic or dead, but may review a question that has become
moot if it involves a significant constitutional question or an issue of significant
public concern. Id.

The trial court based its dismissal for mootness on its November 2000 order. After a
hearing on Dr. Windts motions to compel responses to his discovery requests and for
an expedited hearing, the court ordered the boards to produce the requested discovery and
modified the "gag order." The modification to the "gag order" was
limited to allowing Dr. Windt to discuss the reasons for his removal from the boards with
the medical staff who either signed a confidentiality agreement with the boards or
attended a medical staff meeting on November 29, 2000, convened to discuss whether to
recall Dr. Windt from his position as president.

We conclude that the issues presented in the original petition were not rendered moot
by the November 2000 order. Essentially what Dr. Windt received from that order was a
limited opportunity to discuss his removal from the boards. Looking at the original
petition, it appears that Dr. Windt was seeking the unfettered ability to discuss the
issue, which he was not granted.

The boards contend that because Dr. Windts two petitions were "arguably
identical," the courts dismissal of the original petition "was effectively
a case management order" and was therefore proper. We disagree. The trial court
granted the motion to dismiss for mootness because "all of the substantive relief
which Dr. Windt requested in his petition has been furnished in the Courts November
22, 2000 order." The courts order does not mention anything about case
management or the effect of the second action upon the first. Additionally, the boards
contend that there are "further complications" which support affirming the
superior courts order; namely, that Dr. Windts term as president of the
medical staff has expired and that the voluntary dismissal of the second petition with
prejudice has the preclusive effect of barring further relief to Dr. Windt. The boards,
however, fail to explain why the expiration of Dr. Windts term renders moot his
requests for relief or why dismissal of the second petition would bar further relief.
Because these arguments have not been considered below, we decline to address them for the
first time on appeal. The boards may raise these issues on remand.

In light of our holding that Dr. Windts petition is not moot, we need not address
the petitioners final argument alleging that the boards waived confidentiality of
the information covered by the "gag order."